The application for review in this case is made in the name of Calhand Pty Ltd. However, the permit application was not in that name. At the commencement of the hearing an amendment was made to the permit application to substitute Calhand Pty Ltd as applicant. This amendment was made by consent.
[2]
Furthermore, the application plans, forming part of the application, were amended to substitute a set of plans marked as Exhibit B1. This amendment was also made by consent.
[3]
This case involves a proposal for the construction of multi dwellings on a large redevelopment site. It comes before the Tribunal as an application to review the failure of the responsible authority to grant a permit within the prescribed time. However, since the application for review was commenced, the responsible authority has determined that it would have refused the proposal.
It is relevant to notice that it is not opposed to a development of this sort on the land. Its refusal is based on criticisms of the actual proposal.
Notice of the application was given and there were objections. A couple of objectors lodged statements of grounds for the Tribunal. However, none of them appeared or were represented at the hearing.
The Roads Corporation, also known as "VicRoads" is a referral authority because the land has a frontage to a Road Zone Category 1 and the proposal includes the elimination of an access point from that road. The Roads Corporation is not opposed to the proposal. However, it has instigated the idea of the inclusion of several conditions in any permit that might be granted.
A draft set of suggested conditions was circulated on behalf of the responsible authority on the basis that this was without prejudice to its position that permit should not be granted. Condition 12 was a Roads Corporation condition calling for securing of a contribution of up to $135,000.00 in respect of such a permit as the contribution to the costs of an upgrade to the intersection of Cumberland Road with O'Hea Street at the north-east corner of the review site. The appearance on behalf of the Roads Corporation was principally to support the imposition of that condition.
[4]
The review site, in this case, is a very substantial area of land in its local context. It is an area of 7,290 square metres a frontage of 113.37 metres to the west side of Cumberland Road between the side streets of O'Hea Street to the north and Westgate to the south. There is a side abutment of 69.04 metres to the south side of O'Hea Street and a similar abutment of 69 metres to the north side of Eastgate Street. The land is almost rectangular in shape, but the fourth boundary, its rear and western boundary, is not a straight line. It is of a curved shape indenting into the review site.
At present the review site is vacant. Immediately to its west, on the other side of the concave western boundary, there is a three storey nursing home known as the Dorothy Impey Centre. Like the review site itself, the Impey Centre has abutments to both O'Hea Street and Eastgate Street.
Originally the Impey site and the review site were in one allotment and the whole area was used as an educational institution. I do not have details of the buildings that previously stood on the combined sites and that were used for educational purposes, but the site itself, and reasonable suppositions indicate that the site and its buildings were different in scale and appearance to the surrounding residential land to the west of the Impey property and to the north and south of O'Hea Street and Eastgate Street respectively.
The whole area, so far as relevant, is in a Residential 1 Zone. Those areas to the north, south and west of the review and Impey sites are used for residential purposes. Generally speaking land in these areas is cut up into "house block" parcels and there are one or two storey houses on those lots. There has been some recent construction of various forms of medium housing there, and also in the Residential 1 Zone land to be found on the eastern side of Cumberland Road. Nevertheless, these recent developments can be said to be very similar in scale to the other housing roundabout. There are also some other buildings in the vicinity that are located on the opposite side of Cumberland Road. These include an RSL club and a disused service station.
O'Hea Street and Eastgate Street are collector streets that provide access to the residences that front them and to other housing to the west. Cumberland Road is a very busy arterial road and is a Road Zone Category 1 in terms of the planning scheme. It carries heavy volumes of traffic, especially at peak times, but also generally. Public transport, in the form of buses, run along this road.
The review site is located within walking distance of a centre at some 400 metres distance. This site is well located for a medium density housing development in terms of access to services and facilities, including shopping and public transport.
Although not especially designated as such, this site represents an important and valuable opportunity in that it is such a large area of almost flat and useable land located, as it is, in Pascoe Vale. Pascoe Vale is far inside the metropolitan fringe area, and it is a long time now since it was developed. Large sites like this are fairly rare and hard to find.
It is accordingly an important site that should not be wasted. It was acknowledged, on all sides, that it is an important site, suitable for medium density housing and an important opportunity should not be lost or wasted. Although this was acknowledged on behalf of the responsible authority, there were frequent references to neighbourhood character descriptions and preference documents that are written in terms of what might be called ordinary low scale residential development on small allotments. There were frequent suggestions, on behalf of the responsible authority, that the proposed two and three storey multiple dwelling development sought in this case is out of keeping with the existing neighbourhood character and the preferred future neighbourhood character. Such suggestions, and such submissions fail to appreciate the importance of this site and the important opportunities that it represents. They seem to suggest that anything other than cutting it up into house lots, and developing it with detached houses or dwellings of a similar scale, would be contrary to the suggested neighbourhood character and preferred future neighbourhood character. However, to develop the land in that way would waste the site, and be quite incompatible with sound planning principles.
It is very common for residential areas, developed for residential purposes since the Second World War, to be detached houses on so called quarter acre lots. That is a form of housing that is popular, but as a "monoculture", it is becoming less sustainable. That does not mean that there cannot and should not be substantial areas developed in that way or that they should not remain, substantially in their present form. Nevertheless, even in such areas, it is not only common, but it can also be proper, appropriate and necessary for there to be other developments of a different scale and appearance, in some instances even of an institutional scale and appearance. An extensive residential area needs other things than just houses to serve its needs. Some examples are convenience shops, churches, schools, child care centres, nursing homes, and many other things. Schools, nursing homes, child care centres, places of worship and the like are not to be regarded as necessarily out of keeping or out of context when located in residential areas. That is particularly so in relation to non-residential uses that are there to serve the residential uses of the area.
To be in keeping with neighbourhood character, and preferred future residential neighbourhood character, does not mean that everything must look alike in style, scale and usage. In fact such circumstances, for which I have just invented the term "residential monoculture", can be unduly bland and boring. There can be a place for variations in scale and style create variety and interest. In particular, some well designed local landmarks can rather enhance than detract from neighbourhood character.
That does not mean that every bland and bulky large development amounts to an interesting and well designed landmark. Sadly large developments or redevelopments can be quite uninspired and uninteresting whilst being of a bulk and style to detract rather than contribute to their context. I note that Mr Holdsworth, the urban design consultant who gave evidence for the responsible authority, referred to the value of well designed developments that can contribute as local landmarks. He referred particularly to the street corners with the front of the review site, and suggested that in the centre of the site a portion of the development might rise above the three storeys depicted in the application plans to four or five storeys. The Dorothy Impey building to the west has clearly been designed in a thoughtful way with attention to its functions but also to its place in its context. Some trouble has been incurred in designing a building well articulated with an interesting faceted façade facing towards the review site to its east. It has been designed with a view to being integrated with a development on the review site. Indeed the better features of its façade are designed to be appreciated from locations immediately to its east, including the western side of the review site. At present the Dorothy Impey building stands out in the multiple views to be obtained by people travelling up and down Cumberland Road.
These views are at such a distance that the delicate facetting and design work is lost by that distance. Cumberland Road is a heavily traffic portion of the public realm. Many people obtain this view of the Dorothy Impey centre, but what they see appears as a long three storey bland and boring "barracks" style building that, at present, detracts rather than contributes to its visual environment.
That is hardly surprising in the circumstances. It was not intended to be viewed, except perhaps for some glimpses, from Cumberland Road. It was designed in contemplation of there being three storey buildings between it and Cumberland Road. It is also designed to be integrated with such intervening buildings so that they would complement each other and so that there is a physical, visual and spacial relationship between them; and an opportunity to pass between them.
All this arises from a notion that was extant at the time the land ceased to be used for educational purposes, and was sold off by the education authorities. The notion was that there should be a subdivision of the original education land into two allotments namely lot one where the Dorothy Impey now stands and lot two which is the current review site. It was contemplated that on lot two there would be two buildings each of three storeys, each around a central courtyard and each relating to the other, and to the Dorothy Impey centre. There was a ill defined notion that this development would be used for the accommodation of the elderly. I say ill defined because it is not clear, on what has been presented to me, as to whether it was intended to be something in the nature of a retirement village, or an intermediate care hostel providing enhanced support (but less than nursing home level) for people of advanced years. There is a suggestion that the corridors were designed to be wide and with hand rails, although I have no actual evidence of that.
The permit pursuant to which the Dorothy Impey centre was established contemplates such a building. In fact, the present applicant holds a permit for a 90 unit apartment building in accordance with those plans featuring the two "square donut" apartment buildings each around a central courtyard. Each of the building would have four sides around the central court, and each would be three storeys high. The plans provide for car parking to be located in a basement.
When I say the applicant holds such a permit, it would have expired by now, except that the Responsible Authority itself has granted an extension to its life. It continues now as a valid and current planning permission. The applicant could, if it chose, act on that permit and construct that 90 apartment building on the review site. At present it is preferring to pursue an alternative design to contain 67 (or is it 68 or 69) dwellings. There seem to be some uncertainty as to the number actually proposed, as between varying sets of plans.
The 90 apartment design has the square donut buildings located so as to orient well, not only with the surrounding streets, but also with the Dorothy Impey centre. There would be something of an open area near the centre of their common boundary with the Dorothy Impey centre facilitating access between the apartments and that centre.
Among the social, and indeed planning problems of the metropolis is that there is a substantial ageing population that is difficult to accommodate suitably. As people age many wish to, or need to progress from supporting themselves in their own homes through stages such as retirement village, intermediate hostel and nursing home. For those who have lived their lives in the middle or inner suburbs it is preferable that such facilities should be in familiar locations. However, it is frequently difficult to obtain sufficiently large sites for a viable facility in long established locations. Large enough sites might be available on the metropolitan fringe, but for many aging people to go there would mean an unfortunate and undesirable dislocation and separation from familiar places and people. The appeal of using suitable sites in established suburbs to provide such services is obvious, especially if there can be the provision of various levels of support for various stages of ageing on the one campus or in close proximity to each other. For example, people might inhabit a retirement village with low levels of support but progress to an intermediate hostel, and ultimately to a nursing home level of care. If all this can occur in one locality then friendships, and the relationships between spouses, can be maintained as individuals progress at different rates to different levels of care.
Some such notions were contemplated for the Impey centre and the review site. However, the expression of these notions in terms of contract conditions or restrictive covenants or a section 173 agreement have been ineffective. The result is that there is an existing permit for the 90 dwelling apartment building which can be used simply as apartments, and without any relationship to the Dorothy Impey centre in terms of retirement village or hostel level care.
[5]
The proposal has been evolving. I am considering it on the basis of the plan marked as Exhibit B1 and substituted for the original application plan at the hearing. The proposal has its merits and its deficiencies. It is not dreadful, nor is it inspired. It does not provide large bland blocks of building, but significant aspects have not been thought through or designed to achieve a superior proposal. The proposed development was broken up into seven separate buildings of two and three storeys. On the front or eastern half of the land there would be four buildings containing two rows of so called "townhouses". These are not the same as 19th century two storey terrace houses as might be found in North Carlton, but they are a modern expression of a similar sort of dwelling. All the townhouses would be two storey. There will be two rows of them. The ones along the Cumberland Road frontage with a setback of approximately 4.5 metres. These buildings would return around corners back to link with the second row of townhouses. These two substantial front row blocks would be separated in the middle of the Cumberland Road frontage by substantial pedestrian and landscaping space running back to the western half of the site. An existing access to Cumberland Road would be eliminated and there would be no vehicle access directly from Cumberland Road.
Apart from the townhouses there would be the apartment blocks. These would be in three buildings and denoted as buildings A, B and C. A and C are located in the north western and south western corner of the site whilst building B would be central on the western half of the land. All three buildings are set close to the curving Dorothy Impey boundary. However, there would be no integrated or access relationship to the Dorothy Impey establishment. There is fencing along the boundary. The new buildings would be set close to the fencing.
Vehicular access would be obtained from crossings opposite to each other halfway along the O'Hare Street and Eastgate Street frontages. Driveways would enter from those crossings between buildings A and C on the one hand, and the townhouses on the other. These driveways would then branch to the north into spaces between buildings B with buildings A and C to determinate the dead ends against the Dorothy Impey centre fence.
However, the driveways starting from O'Hare Street and Eastgate Street do not connect for vehicle circulation purposes, although the space between them is open for landscaping and pedestrian paths. Each has a branch driveway turning to the east and then branching to the north and south to provide rear access to the front and second rows of townhouses. These would be really service areas, giving access to garages let into the ground floors of the townhouses from what would amount to be rear access lanes. That is on the basis of the front or eastern rows of townhouses being regarded as fronting the west side of Cumberland Road behind their 4.5 metre front garden setbacks whilst the second row would be regarded as fronting the internal driveway or the garden and pathway area between the second townhouse blocks and building B.
This proposal does not contemplate a basement car park for all or any of the parking requirements generated by the proposal. Neither does it propose a "sub basement" car park, not so deep as the basement, but accommodated by some excavation and parking under a somewhat elevated ground floor level. The townhouses would have their garages with access from their back lanes, but all parking in relation to the apartments in buildings A , B and C would be at ground level along the sides of the access driveways and the branches thereof that turn to the north between the apartment buildings. This means that, although there is some spacing of the buildings it is not very useful for recreational, amenity or visual relief purposes because it is taken up with driveways, ground level parking spaces and the paving of both. There are permeability issues in relation to the amount of sealed area, but I am concerned about the look and "feel" of so much of the open space being taken up, visually and spacially, with service facilities for cars and their accommodation.
There are no issues, in this case, about the provision of sufficient car parking. Apart from substantial parking on site, the side streets of O'Hare and Westgate Street offer some opportunities for parking, with angled parking provided on the southern side of O'Hare Street, opposite the houses. That presumably dates back to the time of education uses of the site.
I have mentioned that the townhouses are to be two storeys. The apartment buildings (A, B and C) rise to three storeys. The central one, building B, would be wholly of three storeys whereas those closest to the side streets would be partly two storey and partly three storey. The ground and first floor setbacks from the side streets at 4.5 metres will increase to 6.9 metres at second floor level.
All the three storey elements will relate closely to the three storey Dorothy Impey centre whereas the two storey elements, both of the apartment buildings and the townhouses, relate satisfactory, in my opinion, to the one and two storey developments on the opposing side of the side streets, and certainly to the developments on the opposite side of Cumberland Road.
[6]
In the course of two days of hearing many matters were discussed and many submissions made in relation to elements, issues and possible amendments that might be made to the proposal. Some of these issues are of significance whilst others are less so or quite minor. I do not propose to try and deal with everything that has been said. That is not really necessary in the circumstances.
Many criticisms were made on behalf of the Responsible Authority. I think that some of them are justified and that others of them are not. I note what Mr Holdsworth said about the possibility of four or five levels in the centre rear of the site, generally in the location of building B. I also note his comments about it being an asset rather than a detriment to the site to have something that is interesting and in the nature of a local landmark. He complains particularly about the "weakness" of the development on the street corners. I do not disagree with him, in fact I agree with him, but those hints do not necessarily mean that the current proposal is unacceptable. The use of separate buildings with spacing and articulation does contribute to the design of this proposal. I think the central wider separation for landscaping and pedestrian access between the northern and southern segments of the townhouses is quite good, and an improvement on several smaller gaps in the array of townhouses along Cumberland Road. I do not object to the two substantial segments of townhouses and I do not agree that it is necessary to take out a townhouse halfway along each front rank. This is not North Carlton and these are not 19th century two storey terrace style townhouses, but I nevertheless think that these rows are acceptable in their context. The suggestion for further breaking them up is an example, in my opinion, of the over emphasis on the neighbourhood character documents that are principally designed for individual dwellings on smaller lots featuring things that need not and should not be reflected on this different style of development.
The higher elements, such as the three storey building B and the inner three storey parts of buildings A and C, are appropriately located towards the centre of the site in terms of its north-south axis, and in proximity to a three storey Dorothy Impey building. The step downs towards O'Hare Street and Eastgate Street frontages, with the increase setbacks at second floor level is acceptable to my mind.
However there are aspects of the criticisms raised by the Responsible Authority that carry more weight. As previously noted, this is an important site because of the opportunities it offers, including its opportunity to provide a variety of housing, although it may not be used for housing for people of advanced years. The contrast of style to surrounding residential development is acceptable and it is true that the layout does place substantial bulk close to the Dorothy Impey building with its accommodation rooms that face to the west, and its communal open space area located between its building and the common boundary. It is true that protection in terms of highlight windows and quite a lot of screening of windows or balconies to a height of 1.7 metres is required because of this proximity.
I consider the layout and location of living rooms, their windows and balconies to be notably poor and to be reflective of inferior, thoughtless and careless design. It is commonly not possible to avoid southern exposure for living room windows and outdoor living areas (including balconies) for every dwelling in a substantial development. Nevertheless, the avoidance of southern aspect, and the taking advantage of northern aspect, is a fairly basic design principle. In relation to buildings A, B and C there are apartments at ground, first and second floor levels where the bedrooms are placed on the northern side with the living rooms internally so as to have, at best, easterly or westerly aspect. This is poor design and unnecessary. I am not prepared to sanction it.
My other concern is as to the expense of areas of paving for vehicle access and parking which takes up so much of the open space left between the buildings. Of course it is necessary to have service areas and access, and some space has to be devoted to these facilities, but the unbuilt on space is, in my view, unduly dominated by these facilities.
The plans betray careless preparation or careless amendment where consequential changes have not been dealt with. Paths that once might have been relevant as being retained when they are no longer relevant, labelling this astray, numbering in error and detailing poor. Though some of these things can be remedied, they go along with some more basic defects all of which betray insufficient thought at initial design stage, or as changes have been made during the evolution of the planning. I have no doubt that there are many ways of designing the development for accommodation of apartment style and or townhouse style for this site. It would no doubt be an advantage to be able to put the parking underground, but it is expensive to excavate basements or semi basements. Likewise, lifts are also expensive which might be necessary if there are extra levels, above or below ground. I am not in a position to assess whether the added expenses of such techniques could be sufficiently be compensated for by an increased yield of dwellings. I am certainly not in a position to redesign the proposal. Although I agree with only some of the criticisms made by the Responsible Authority, those that I do agree with are sufficient to persuade me that a permit should not be granted.
[7]
One day was originally allocated for the hearing of this case. In the event it was part heard at the end of the first day and the hearing was resumed a week and a day later. During the interval the applicant has sought to patch up the proposal in the light of criticisms made on the first day by the Responsible Authority, its witness, or by comments that I have made in the course of the hearing.
The result has been a new ground floor plan and a list of suggested alterations. It can be fairly described as a "patch up". The plans are careless and incomplete. There is only a ground floor plan with no first or second floor plans, with only a written indication of what they might contain. However, it is not encouraging to find errors on the plan that is provided, such as a reoriented balcony but with no means of access. That, of course, is correctable, but is not encouraging to find such things where the plans are incomplete. No doubt it is possible to grant a permit and frame a condition requiring amended plans to be approved by the responsible authority. The specified modifications might be extensive, and would be to trust that the responsible authority would cover all points and discrepancies, and only approve a suitable plan.
The proposed patches and mends do, on the whole, improve the proposal. Some of the alterations are relatively minor details. I am not sure that the optimum location for bicycle spaces has yet been identified, and I am not attracted by the new suggestion of outdoor storage space being located in the front gardens of the townhouses along Cumberland Road and around the corners into the side streets. The turning or internal relocation and orientation of living rooms and balcony is a considerable improvement. The location up close to the boundary and to the Dorothy Impey fence remains, but is improved a bit by the reduced need for screening in a westerly direction.
My concern about driveways and parking areas remains. An attempt to mollify this concern is the suggestion that the paving of car parking spaces could be pervious rather than impervious. The mode of such paving is left uncertain. The expressions "grass crete" and "pervious pavers" were used. Are pervious pavers blocks of solid material that allow the water to run through, or are they pavers with perforations to let the water through, or are they pavers with gaps between to let the water through? Is there still a need for grading?
All this might relate to the question of how much the site is built on and how much of it is impervious in comparison to the percentage in relation to which water penetration can occur. However, this question of permeability is not my major concern in relation to the driveway and parking areas. I am more concerned about the amount of open space devoted to cars and their access and parking, and to the appearance and consequent ambience created by such use of the available open areas. I still consider it to be too much, and that the proposal is still unsatisfactory in this respect.
I am not satisfied that throwing in the notion of "grass crete" is a satisfactory or sufficient answer to this concern. I am not satisfied that "grass crete" is a very satisfactory compromise between hardstanding and landscaping. Is the applicant unable to do better than throw in a few suggestions without coming forward with a definite proposal as to paving in these areas? There is no evidence of the satisfactory performance of any of the substitutes including "grass crete". Is grass crete really satisfactory, or is it an unsatisfactory falling between the two objectives of firm standing on the one hand and attractive and useable open space on the other? How much maintenance of it is required? Does it deteriorate into grassless dirt with only a reduction of mud and dust? Do high heels sink into it? After all, lawn would not normally be regarded as a satisfactory surface for the parking of vehicles. Lawn would no doubt tend to wear, pot hole, turn to mud or dust, and have some forms of (often expensive) footwear sink into it. To what extent does grass crete overcome those defects?
In the past the Tribunal has approved better proposals than this one (and so have I); and in the past it has disapproved poorer ones (and so have I). This proposal has some merit and I have discounted some of the deficiencies contended for by the responsible authority. I think a proposal of this general sort would be acceptable, but I have concluded, on balance, that this one is not.
[8]
It is to be expected that this site will be redeveloped. It is a superior site worthy of a superior design and a superior development. No doubt a superior proposal could be devised. My decision leaves it to the applicant as to whether it will start afresh with a view to achieving such a superior result. I suppose it can just seek to revise the current proposal to address its identified defects with a view to bringing it to acceptability.
By section 4(2)(d) of the Victorian Civil & Administrative Tribunal Act 1998 the failure of a decision maker (like the responsible authority) to make a decision within the time specified is deemed to be a decision at the end of that period to refuse to make a decision. I think it can therefore be said that the responsible authority, in this case, is deemed to have refused to make a decision to grant a permit. For the above reasons I affirm that refusal. No permit is granted.
Parties
Applicant/Plaintiff:
Calhand Pty Ltd
Respondent/Defendant:
Moreland CC [2011] VCAT 1009
Cases Cited (1)
Calhand Pty Ltd v Moreland CC [2011] VCAT 1009 (27 May 2011)